If you're going to be anywhere near a TV on Sunday evening, don't miss 60 Minutes. They have a segment they're running about the millions of dollars the federal government is spending to convince children and adolescents that condoms arent' very effective at preventing STDs or pregnancy. You may be familiar with the general topic. But the interviews with Bush administration officials and those they're funding will really take your breath away.
--Josh Marshall
Kevin Drum puts the whole 'nuclear option' drama into perspective. This is really a post you must read. As Kevin says, the Republicans really brought this whole mess on all of us. For further discussion of the point, see this post by 'Hunter' at Dailykos.com.
--Josh Marshall
The Associated Press finally makes the connection in their reporting on the trial of accused election-tamperer James Tobin ...
At the time, Tobin was a high ranking official of the National Republican Senatorial Campaign Committee, whose job was to elect Republicans to the Senate. The 2002 race between Republican John E. Sununu and Democrat Jeanne Shaheen, won by Sununu, was considered one of the closest in the country.The committee was run by Sen. Bill Frist of Tennessee, now Senate majority leader.
Tobin conspires to deny New Hampshirites the right to vote, according to the new indictment brought today. And he did this while working for Bill Frist.
You'd think the Majority Leader would at least agree to answer what if anything he knew about it.
--Josh Marshall
A reader from Texas checks in ...
JoshI have been licensed to practice law in Texas since 1961. During that period we have seen the complete deterioration of the 5th Circuit in New Orleans from a beacon of reason during the civil rights battles (of course it then included more States including Alabama) to the a rubber stamp right-wing caricature of its former stature.
The court is particularly bad in precisely the areas in which Priscilla Owen is awful. Sure she is terrible on abortion issues. I think the other important areas of her reactionary views such as employee rights, civil rights, torts etc. are the ones she will do the most damage on. That is because most of those sorts of cases end at the Circuit Court level. Most abortion issues do make it to the Supreme Court, so the damage she could do on that issue is limited.
Here is my compromise, as much as it pains me: Let Owens go through. It will not make the 5th appreciably worse; the only more retrograde Circuit is the 4th. I know it will further imbalance the 5th and violate the dictum laid down by Sen. Schumer. The way I see it is that the 5th is a lost cause or sacrifice area already and for the foreseeable future. But, the DC Circuit to which Judge Brown has been nominated is both more important and more closely divided. Brown is so far out of the mainstream she almost makes Owens look moderate. Brown must be stopped. As must Myers. We need to preserve the independence of other Circuits such as the 9th and reluctantly let the 5th and 4th go even further, if such is possible, to the dark side. We have to depend on the fact that conflicts between circuits are often taken up by the Supreme Court.
Actually I do not think Frist can win a vote on the nuclear option. When crunch time comes I believe just enough Republicans will decide against violating both the rules of the Senate and permanently weakening the Senate vis a vis the Executive.
I think he may be right on that<$NoAd$> last count.
--Josh Marshall
I mentioned a couple days ago that the chief bad actor in the 2002 New Hampshire phone-jamming scandal, James Tobin, is now going on trial. His attorneys are seeking to throw out his indictment on the theory that there may have been Democrats on the grand jury. And they're also asking the judge to allow expanded voir dire to allow his lawyers to strip the trial jury of any liberal bias.
I'm just looking here at Tobin's lawyers' proposed jury questionnaire. And there are some really entertaining questions, like ...
"8. Are you now or have you ever been a member of a union?
[] YES, I am now
[] YES, I was in the past, but am not now
[] NO
If YES, what union(s)?"
"9. Are you or have you ever been affiliated with a political party? []YES []NO
If YES, what party?"
"18. If you have access to the internet, do you participate in chat rooms?
[]YES []NO"
"19. Do you read any blogs on the internet? [] YES [] NO If YES, what blogs do you read?"
--Josh Marshall
Another point, for anyone who's actually interested in the constitution, its history and its future, is the degree to which this whole operation is quite clearly being engineered from the White House. This isn't just about the internal workings of the senate. It is also about, indeed principally about, the executive clipping the wings of the Congress, part of the parliamentarization of the American government under the President Bush that we discussed back on November 5th.
--Josh Marshall
It may surprise you to hear that I'm not totally averse to a compromise in the judges/nuclear option situation. Not all of the judges being filibustered, for instance, are equally extreme in their views. So it wouldn't seem a bad deal to me if the senate Democrats were to allow up or down votes on some or even most of the judges in question, if what they got in return was some ironclad guarantee that the Republicans would no longer try to break the rules and abolish the right to filibuster.
Now, how that guarantee could truly be ironclad? I have no idea. But I'm speaking in hypotheticals.
What I don't understand is the logic of the deal that some of the senate moderates seem to have been and perhaps still are considering. The proposal floated yesterday would allow the two most extreme nominees, Owen and Brown, to go through, in addition to three others. On top of that the senate Dems, if I understand this right, would agree, in essence, seldom if ever to join filibusters in exchange for a promise from their counterparts on the other side not to vote to outlaw filibusters.
Now, there are those I've spoken to who see such a deal as worth it because at least it leaves the filibuster intact for the upcoming Supreme Court nominations. But this strikes me as foolish. There are easily enough Republicans to defeat this right now, if this were a secret vote. What we're seeing, however, is the degree of pressure the president, the religious right and Sen. Frist -- who is in hock to the religious right because he wants to be president -- are putting them under.
If the filibuster is 'saved' today at the cost of letting the most constitutionally noxious nominees go through, do we really imagine that the pressure will be any less when we get into a Supreme Court battle? The question answers itself. If they can't withstand the pressure now, they certainly won't be able to withstand it then. So such a deal, as near as I can figure it, would 'save' the filibuster in an entirely meaningless way, a right the minority would continue to hold so long as they agree never to use it.
The situation would be different if the deal did not allow through at least the two most extreme nominees, Owen and Brown. On one level it would be different simply because those two judges' records make them the most important to defeat. On another level, though, it would represent a telling sign. If these Republican moderates were to agree to a deal that nixed these two nominations, that would tell me that they really are willing to hand their leadership (and the Dobsonites) a significant defeat and that they recognize that the power of the filibuster remains intact -- otherwise, why nix the two nominees both sides see as most important.
Those two facts would be the tangible proof that the filibuster still exists and that a significant number of Republicans recognize its existence and are willing to sustain it. That would mean far more than any words on paper or handshakes.
(Such an arrangement would also spawn a civil war among Republicans.)
So all of that is my thinking on why it might be good on substance and on politics -- depending of course on the precise particulars of the deal -- to give the Republican moderates a few judges now in exchange for putting to rest this plan to break the senate rules with false claims of the filibuster's unconstituionality. But any agreement that concedes on the present nominees in exchange for kicking the can down the road till the next fight on which the stakes will be even higher is just stupid.
If the filibuster is dead, far better as a matter of principle, honesty and politics to find out now, in advance of the next fight, than pretend otherwise.
The truth is that I think this whole debate is really hypothetical or moot. They've decided to break the rules with their false claim of unconstitutionality. And if that's true then Democrats should confront the situation at that level, without fear of doing so, without fear of 'losing' in the narrow sense of the term. It's just about the rump caucus of Republican moderates and whether they want to join their colleagues in their rule-breaking.
Late Update: This is one of those cases where I wish TPMCafe were already up and running (in case you're wondering, the site will launch before the end of the month) because the comments I'm getting in on this post are fascinating and have already led me to, at least partly, reconsider my position.
Many readers argue that the sort of 'compromise' I suggest still wouldn't be worth it because it would further confirm the Democrats' reputation -- both to themselves and to the electorate -- as weak, as trimmers who won't take a stand on a point of principle. In this sense, conceding anything would grant a measure of legitimacy to what is plainly an illegitimate action, one demonstrably based on false claims. I think that's a solid point. Over the last four years the Republican party has resorted with increasing frequency to tactics that at a minimum break long settled norms of our politics and in more than a few cases violate the law itself.
My openness to such a compromise is based on the belief that the sort of compromise I sketched out could well be the final straw that blows a big part of the Republican coalition apart. If the Republicans, either as a whole or because of a few defectors, let the filibuster stand, the Dobsonites will simply go nuts, though I admit in one sense of the word that may seem redundant. So I don't think Frist can or will compromise in this case because it's not as though there's any principles here save his own advancement that he cares about. And he doesn't think he advances any further without James Dobson pulling his strings.
And, as long as we're on the topic, have you ever seen Dobson and Frist talk simultaneously?
--Josh Marshall
Did Rick Santorum really just say that?
Late Update: It seems he really did. Amazing.
Said Santorum: What the Democrats are doing is "the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.' This is no more the rule of the senate than it was the rule of the senate before not to filibuster."
--Josh Marshall
For all the constitutional mischief they're in the midst of making, we should probably thank the 50+ senate Republicans for giving us an extended moment to see so clearly just who they really are.
Remember that this entire political uproar is supposedly about originalism, the need for judges who will interpret the law and the constitution not according to our personal wishes or the political needs of the moment, but according to its original and long-settled meaning. That is, we're told, their aim. And yet to accomplish this they are quite happy to use a demonstrably bogus interpretation of the constitution to overturn two centuries of settled understanding of what the document means and requires.
Before everyone's eyes, everything about the constitution is subservient to their need for power.
Their very victory, should it come to that, is their badge of hypocrisy. Their arguments are all at war with themselves. But they don't care. This is just about perpetuating their own power by any means necessary, using narrow majorities to lock in their power for the long haul.
--Josh Marshall
The unkindest blow (off). Even Robert Pozen is now giving the thumbs down to Bush's phase-out plan.
--Josh Marshall
As we wait on the sidelines for the seemingly inevitable chain reaction to take place on the senate floor, it is worth observing and considering the fact that every Republican senator certainly knows that the proposition they're about to attest to is quite simply a lie. Perhaps they have so twisted their reasoning as to imagine it is a noble lie. But it's a lie nonetheless.
What do I mean?
Whether you call it the 'nuclear option', the 'constitutional option' or whatever other phrase the GOP word-wizards come up with, what "it" actually is is this: the Republican caucus, along with the President of the Senate, Dick Cheney, will find that filibustering judicial nominations is in fact in violation of the constitution.
(Just to be crystal clear, what the senate is about to do is not changing their rules. They are about to find that their existing rules are unconstitutional, thus getting around the established procedures by which senate rules can be changed.)
Their reasoning will be that the federal constitution requires that the president makes such nominations "by and with the Advice and Consent of the Senate" and that that means an up or down vote by the full senate.
Nobody believes that.
Not Dick Cheney, not any member of the Republican Senate caucus.
For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head. You don't even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate.
Quite simply, the senate is empowered by the constitution to enact its own rules.
You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.
For all the chaos and storm caused by this debate, and all that is likely to follow it, don't forget that the all of this will be done by fifty Republican senators quite knowingly invoking a demonstrably false claim of constitutionality to achieve something they couldn't manage by following the rules.
This is about power; and, to them, the rules quite simply mean nothing.
--Josh Marshall
Anne Applebaum, refreshingly, sees the real story behind the Newsweek flap. You won't want to miss this one.
--Josh Marshall
ThinkProgress brings us the latest on the Frist implosion on the senate floor.
--Josh Marshall
Can someone help me with this paragraph from Howie Kurtz's article in Wednesday's Post ...
The Newsweek report triggered protests that turned violent in Afghanistan and other countries, causing at least 16 deaths, although the degree to which the article was responsible remains unclear. Pentagon officials have blamed Newsweek, which is owned by The Washington Post Co., for sparking the violence, but Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, said last week that his senior commander in Afghanistan had told him the riots were "not at all tied to the article."
The first sentence <$Ad$> does not necessarily contain a contradiction. One can trigger an event and yet not bear moral culpability for the outcome. But the following sentence leads one to believe that we're not talking about such a subtle distinction.
If I'm not mistaken what Kurtz says here is essentially this: "The Newsweek report triggered riots in which many people were killed, although it's not clear how much the article triggered them. Pentagon officials have claimed Newsweek is responsible, although last week the chief Pentagon official said they weren't responsible."
If someone can help me get my head around this one, I'd be much obliged.
--Josh Marshall
That's a new one.
As we first reported, James Tobin, Bill Frist's Northeast political director at the NRSC in 2002, was the guy behind the New Hampshire phone-jamming scandal from that year.
Tobin now says, in motions filed with the court, that his indictment in the case should be thrown out because the grand jury that indicted him included Democrats.
And in line with Tobin's apparent contention that Republicans now constitute a protected class (will they mind if we call them a 'discrete and insular minority'?) there's this ...
And if the case does go to trial, Tobin's lawyers want to question prospective jurors extensively about their politics and their exposure to media reports of the case to root out potential bias.A proposed questionnaire would ask prospective jurors to disclose their political party, union membership, whether they've ever had a bumper sticker on their car and what it said, what Web logs they read and whether they ever watch TV shows such as "West Wing," CNN's "Crossfire," MSNBC's "Hardball with Chris Matthews," and "The McLaughlin Group," which mostly runs on public television stations.
Tobin's lawyers also want jurors to describe themselves by checking off all that apply: "aggressive, articulate, emotional, entrepreneurial, intelligent, laid back, loyal, naive, perceptive, stubborn, (or) other."
Federal prosecutors countered that Tobin is required to prove actual bias by the grand jury: He cannot ask judges to assume that Democrats would indict based on their political convictions, anymore than judges can assume Republicans would indict Democrats in violation of their oath to look only at the evidence.
Ye olde right to a trial by your party members.
--Josh Marshall
We've gotten numerous emails telling us that this afternoon on NPR's Talk of the Nation, the host repeatedly, throughout the show, referred to the 'nuclear option' as the word the Democrats came up with to describe abolishing the filibuster. I guess maybe the White House bullying is starting to sink in?
--Josh Marshall
There is a rush of commentary in the wake of the Newsweek flap about the use of anonymous sources in reporting.
If I remember right (from when he edited some of my articles), my friend Jack Shafer is very big on pushing much harder than we sometimes do to get people to go on the record with what they tell us as reporters. And that's certainly a good idea, at least in the abstract and as a general matter. It makes people be more accountable. It gives readers a more precise sense of the reputability and credibility of the sources of information they're relying on. And it's certainly good practice when it comes to using the veil of anonymity to shield sources who are providing little more than snide comment or petty digs.
But make no mistake about it: were it not for the use of unnamed sources, we would know virtually none of what we currently know about the inner workings of our government. The same goes for almost any powerful institution in our society. And, as you might imagine, that's a result some find quite attractive.
I doubt very much that any working journalist with experience covering politics, government or national security issues -- particularly one doing anything remotely like investigative journalism -- would dispute that assertion.
What you would have would be news produced by press secretaries and the powerful, with the occasional addition of snippets from folks happy to lose their jobs to make a given story see the light of day.
Can anonymous sources spread lies or misinformation without having to answer for it to the public they deceive? Of course they can. But that's what makes a good journalist such a good thing and a bad one such a disaster. Society needs journalists as a conduit of information. That makes the use of anonymous sources essential -- often, in fact particularly, on those stories which have the greatest public consequences. And it is the work of journalists to evaluate the credibility of those sources and what they say before bringing them to public light.
That almost always means independently verifying what you've been told. But sometimes that's simply not possible. On a particularly sensitive issue, you'll try to get multiple sources confirming the same point. But any experienced journalist knows that it's often easy to get half a dozen people to confirm something they probably have no way of knowing is true. That's one of many reasons why the so-called 'two source' rule isn't nearly as clear a guide to action as its sometimes portrayed as being.
The simple fact is that a lot of it simply comes down to the experience and good judgment of the journalist, knowing a certain source is knowledgable, evaluating the agendas of their sources, thinking through alternative scenarios that could explain the facts they're seeing. Like I said, that's what makes a rock-solid journalist a great thing and a great asset to society.
The simple fact is that there'd be no 'news' without anonymous sources. Those who want to make the use of such sources illegitimate are, almost without exception, the leaders or officers of powerful institutions (particularly those in government like Scott McClellan and Larry Di Rita) who want to control information and keep it out of the hands of the public.
Late Update: It probably goes without saying. But in each case above when I refer to the 'journalist' this almost always means the journalist working in some degree of collaboration with an editor.
--Josh Marshall
The headline to this NBC article out this morning reads: "White House says move [i.e., Newsweek's retraction] 'a good first step,' but demands more action."
A question. What "more action" should a White House ever be in a position to demand after a story has been retracted, especially in a case where the White House is not even directly involved in the facts of the case.
Think about.
--Josh Marshall
Good catch in Kit Seelye's piece in Tuesday's Times ...
Mr. McClellan and other administration officials blamed the Newsweek article for setting off the anti-American violence that swept Afghanistan and Pakistan. "The report had real consequences," Mr. McClellan said. "People have lost their lives. Our image abroad has been damaged."But only a few days earlier, in a briefing on Thursday, Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, had said that the senior commander in Afghanistan believed the protests had stemmed from that country's reconciliation process.
"He thought it was not at all tied to the article in the magazine," General Myers said.
Compare with this follow-up piece by Evan Thomas in Newsweek (emphasis added) ...
On Saturday, Isikoff spoke to his original source, the senior government official, who said that he clearly recalled reading investigative reports about mishandling the Qur'an, including a toilet incident. But the official, still speaking anonymously, could no longer be sure that these concerns had surfaced in the SouthCom report. Told of what the NEWSWEEK source said, DiRita exploded, "People are dead because of what this son of a bitch said. How could he be credible now?"
As I said earlier this evening, <$NoAd$> let Newsweek's reporting stand or fall on its own (though bear in mind that even at this point the Pentagon's denials seem rather technical). But do not miss the fact that the White House and the political appointees at the Pentagon are exploiting this in every way they can -- even going so far, it would seem, as to declare as a moral certainty claims that only a few days ago they professed to believe were false.
--Josh Marshall
(ed.note: As we get ready for the launch of TPMCafe.com, we'll be bringing you more information about the different components of the site. The following is an introduction to 'America Abroad', the foreign policy group blog, hosted on the new site.)
Why, you might ask, another blog on foreign policy? True, there are plenty of good blogs out there to help you navigate the stormy waters of our world — and of America’s attempt to steer a sensible course. But America Abroad will be different in a few important respects. We will bring you not one voice — but six. Some come from journalism (Dan Benjamin and George Packer); some from academia (John Ikenberry and Anne-Marie Slaughter) and some from think tanks (Ivo Daalder and Jim Lindsay). Some served in government (Dan, Ivo, and Jim in the White House; John at State). Some are more focused on immediate policy questions (Dan, George and Ivo); some have more analytical interests (John and Anne-Marie). One is a lawyer by training (Anne-Marie); others have been trained as political scientists (Ivo, John, Jim, and Anne-Marie). But all of us are committed internationalists, convinced that America needs to engage the world as a positive force. And we all are deeply worried about the direction American policy has taken.
America Abroad will present a running conversation, among the contributors and with you, the readers, about the challenges America faces in today’s world as well as the opportunities engagement abroad may provide to enhance America’s security, liberty, and prosperity. You will see us discuss — and argue over — the key issues of the day: how to defeat terrorism, promote democracy, confront nuclear proliferation, make globalization work, manage the rise of China, and a host of other issues. You will see us explain how we think the world really works, and how America should deal with that world. What are the major factors driving our involvement in the world? What should be our aims? What our means? What is the role of multilateralism? How can we strengthen, reform, or build new international institutions? How much power does the United States have to determine world events? When is using military force appropriate?
This blog will tackle real world issues and assess practical strategies for dealing with them. You will see us comment (and criticize) what the administration, the Hill and, yes, the Democrats have on offer. We're not here to provide screeching condemnation or uncritical cheering from the sidelines. We want to advance the debate — by arguing about the big picture, the major choices, and the grand ideas. And we want you, our readers, to go away feeling that you’ve learned something, that you’ve seen an issue in a new or different light. We want you to think about America’s engagement abroad in ways that you may not have before. If we do that, at least once in a while, then this blog will have served its purpose.
Daniel Benjamin
Ivo Daalder
John Ikenberry
James Lindsay
George Packer
Anne-Marie Slaughter
--
Slow down.
Part of me can't help but appreciate the irony of a White House which took the country to war on shaky (and later discredited) evidence going to war against a news organization that published a short article on shaky evidence.
But set that aside.
I haven't followed every particular about the case of this blow-up over the article in Newsweek. But I do see a clear pattern -- a White House trying to decapitate another news organization.
The parallels with CBS are obvious. And yet, the production of the Rather/National Guard piece ended up containing egregious errors. On top of that, CBS dug in its heels for days even after manifest errors in the reporting had become obvious. CBS brought the Rather-gate avalanche down upon itself with some very sloppy journalism. But the White House quickly saw the opportunity and grabbed it, effectively taming an entire news organization.
What already seems to be happening here is that the White House is trying to replicate the pattern, even in a case with a quite different set of facts.
Here we have a case where two reporters authored a story which seems not to have been as solidly-sourced as the reporters and editors apparently thought. The story quickly provoked a strong denial from the Pentagon. The news organization went back to its sources and found a key source second-guessing his original assertion. Newsweek first cast doubt on the story and then, this afternoon, retracted it entirely.
Newsweek thought the central claim had been confirmed. The Pentagon said these claims have been investigated and not found credible. And Newsweek now says it can't stand behind the story.
Here's a newsflash: reporters make mistakes. It happens every day in newspapers around the country. When a country has an aggressive, free press, it is inevitable that reporters will sometimes get stories wrong. Indeed, I think I could rattle off dozens in the last year alone in which the poor practices on the part of the journalists seem to have been more blameworthy than is the case here.
When news organizations make errors, they have to correct the story as quickly as possible. Believe me, every honest journalist lives in fear of getting a story wrong. And when a mistake gets made, even in good faith, it puts a dent in the journalist's reputation.
If it turns out that the reporter was dishonest or acted recklessly or simply didn't perform as a professional journalist should, then there are more immediate consequences. That can include demotion, firing or even being drummed out of the profession entirely.
Perhaps something like that will prove to be the case here; so far, though, I haven't seen it.
What I do see is a pattern of a White House focusing in on particular instances of vulnerable reporting and exploiting them to set new de facto rules for the national political press.
Here we have today Scott McClellan, the president's press secretary, specifically demanding further disavowals of the story from Newsweek. That should trouble anyone. The White House is not a party at interest here. Perhaps the people who have been falsely accused are. Perhaps the Pentagon could demand an apology if the story turns out to be false. Or the Army. Not the White House. They are only involved here in as much as the story is bad for them politically.
We are already seeing a wave of violence, at least some of which preceded the publication of this article, being blamed on the reporters in question here. That is a vivid reminder of the responsibility all journalists have to get stories right. At the end of the day, though, the responsibility for the deaths of those who were killed rests with those who killed them, nowhere else.
(As Andrew Sullivan rightly notes, in terms of severity it is actually not that easy to distinguish between this alleged conduct and lots of stuff we know for a fact did happen at Abu Ghraib, Gitmo and other places.)
At the risk of stating the obvious, I'm not justifying the work behind this story. I have no particular brief for Mike Isikoff or Newsweek. Indeed, it's not clear to me precisely what happened at all. What I am saying is that occasional errors are inevitable with a truly free press. The price paid by the news organization and the individual journalist should be based on whether and how well they followed established journalistic practices -- not on how much the White House went after them. If the new standard is that every material fact reported must be attested to on the record then in the future we'll know only a tiny fraction of what we do now about the internal workings of our government.
What I see here is an effort by the White House to set an entirely different standard when it comes to reportage that in any way reflects critically on the White House.
That's dangerous and it should be recognized as such.
--Josh Marshall
It seems that "nuclear option" has become such an effective Democratic slur that congressional Republicans just can't help saying it themselves. In fact, the GOP leadership on the Hill has to send out specific instructions to their members to stop using the phrase.
In this talking points memo, circulated today by the Republican leadership in the House, #1 of the "Top Five Message Points" is "1. Do not refer to the "nuclear option" -- it should be called the constitutional option."
You can see the document here.
--Josh Marshall
Like many of you, for months I've heard President Bush and Vice President Cheney talk up 'Asbestos Reform' as one of the main planks of their legislative agenda. I didn't know just what they meant by that or what the issue even was (that is, beyond the fact that exposure to asbestos obviously causes all sorts of deadly and chronic ailments). But given who was pushing it, I figured it couldn't be anything good.
Over the last week, I've taken an initial look at the question. I haven't had as much time as I've wanted to dig into it. But the pretty clear initial impression I've gotten is that, while the overall concept may be a good one (setting up a trust fund to compensate victims of absestos exposure), the actual piece of legislation (S.852) moving down the pike amounts to a huge giveaway to a couple dozen big companies who will see their annual payouts to sufferers from asbestos exposure fall to just a fraction of what they are now.
Let me be crystal clear about one thing: trial lawyers would totally take it on the chin with this bill. (In fact, I think that's one reason the White House and the Republicans are pushing it -- as a way to defund Democrats.) But just because trial lawyers have self-interested reasons to oppose it doesn't mean it's not also a bad bill. And a pretty persuasive case has been made to me that the bigger effect of this legislation is to radically reduce the financial liability of a few big companies -- who in the past were the worst bad-actors with asbestos -- and make it a lot harder for people sick or dying of various asbestos-related ailments to be compensated or get cash settlements to pay for medical treatment.
I know there's been a lot of equivocation in this post. And that's because I don't like to talk about a topic or piece of legislation until I feel like I really have a handle on it. So in this case, I'll just say that my first impression is that this is a bad bill. And I'd suggest people look more into it. Here's a report from Public Citizen that's a good place to start.
I'd be very curious to hear your views, for or against.
--Josh Marshall
Okay, it seems I was wrong.
"Byrd Option" isn't the third Republican try at a publicly-acceptable name for abolishing the judicial filibuster. Apparently, it's one of at least six.
--Josh Marshall
I'll be out for most of the morning at the Personal Democracy Forum conference here in New York. I'll be presenting at 11:30 AM panel 'Using the Net to Move Your Issues'.
Later today we'll be bringing you more news about the soon-to-be-launched TPMCafe.com.
And, for your reading pleasure, here's a piece I was working on earlier this year, a review of David McCullough's new book 1776. It's out this morning in the new issue of The New Yorker.
--Josh Marshall
Howard Dean rips Tom Delay; Barney Frank rips Howard Dean. See the details.
--Josh Marshall
Third try's the charm? With 'nuclear option' up in a mushroom cloud, and 'constitutional option' down the memory hole, Sen. Mitch McConnell (R) of Kentucky this morning introduced "Byrd Option" as the new GOP-approved word for abolishing the filibuster.
Reporters should be getting their notices shortly.
Late Update: See the video of McConnell in action trying out "Byrd Option".
--Josh Marshall
Over at the TPM Bankruptcy Bill blog, Prof. Elizabeth Warren is putting out a call for questions that should be put to credit card industry executives (among others) when they appear before the Senate Banking Committee on Tuesday. Take a look at what she has to say.
--Josh Marshall
Down for the Count?
Here's a story that deserves a bit more attention but hasn't, to the best of my knowledge, gotten much play outside Indiana.
Republicans have gone to great lengths to protect Rep. Chris "The Count" Chocola (R) of Indiana from any fall out over his support for partially phasing out Social Security.
Actually, they've put almost as much effort into running cover for Chocola over his history of flip-flopping on the issue since in 2000 he said he was for complete phase-out, followed by a 2002 stance against phase-out, and a current stance in favor of partial phase-out.
But I digress.
Social Security has become a hot issue in Chocola's district -- occasioning even a visit from President Bush a couple months ago. And back on Monday, Rev. Lisa Doege of South Bend's First Unitarian Church was planning to hold a program on the topic of Social Security at the church, which included Notre Dame Professor Teresa Ghilarducci, a pension policy expert who President Clinton appointed to the Pension Benefit Guaranty Corporation's advisory board and Indiana Governor O'Bannon appointed to serve on the Board of Trustees of the State of Indiana Public Employees Pension Board.
But Monday afternoon Doege got a call from State Representative Luke Messer, the executive director of the Indiana Republican party, who warned her that her church's program on Social Security might cost the church its tax-exempt status.
According to this AP article, Messer based his claim on his understanding "that Ghilarducci was active in Democratic politics and contributed to the campaign of Joe Donnelly, who ran against Republican Rep. Chris Chocola in last year's election." The information had come from Chris Faulkner, Chairman of the St. Joseph County GOP.
Messer, as expected, says no threat was intended. The call was purely informational. And apparently he wanted a pro-privatization speaker included in the program.
But I think the nature of the interchange -- a state party chairman warning a minister that her church might lose its tax-exempt status if she didn't include his phase-out-enthusiast in a program her Church was holding on Social Security -- speaks for itself.
Also, to the best of my knowledge, Rep. Chocola has made no public comment about whether he believes Messer's actions were appropriate.
--Josh Marshall
There seems to be a rising chorus of claims that, even if the expected shortfalls in Social Security funding are still almost forty years in the future, every year that goes by the cost and difficulty of fixing the problem increases. But this makes no sense, especially since President Bush's proposed means of 'fixing' Social Security's shortfall turn entirely and exclusively on cuts in guaranteed benefits.
Here's what I mean: If the issue was prefunding Social Security as a social insurance program, then the sooner we start doing that the better. But President Bush has specifically ruled out new funds (i.e., increased tax revenue) as part of the solution. So no dice there.
In fact, it's even worse than that since President Bush has also ruled out the existing funding mechanism by which any sort of pre-funding could take place.
Again, allow me to explain.
Let's say we immediately cut everyone's Social Security benefits by 20% -- just across the board; everybody, high and low, gets hit the same. I can barely manage simple division anymore; so I'll leave it to the econ folks to figure out the particulars. But if we cut payouts by 20% that would leave Social Security with a substantially larger annual surplus. That would mean more money socked away into the Trust Fund every year. And the Trust Fund would last much longer.
Not only would the Trust Fund last longer because there's more money in it, but it would pay down more slowly because everyone's benefits would be smaller.
But the president doesn't believe that the Trust Fund exists as a funding mechanism. Set aside all the word-games and disagreements about IOUs and real assets. The president doesn't believe the Trust Fund materially improves the solvency of Social Security because he doesn't believe those Treasury notes constitute a real asset. To him, it's just a book-keeping ledger calling for higher taxes down the road.
Indeed, it would be foolish for current beneficiaries of the program, or people currently paying payroll taxes, to fatten up the Trust Fund in this way so long as the current president isn't even willing to stipulate that the money will be paid back.
Given the options the president will allow, the only option left available is to take a portion of the Trust Fund and invest it in stocks in one aggregated fund, rather than in private accounts. This would be similar to how state pension funds work. But even that doesn't pan out because the president has again and again said he opposes investing Trust Fund revenues in this way because it would lead to the government owning too much of the private economy.
That leads us back to what seems to me to be the unavoidable conclusion that, given the options that President Bush will allow, it won't be any harder or more costly to 'fix' Social Security five or ten or any number of years into the future than it is today. And that's because we can cut benefits whenever we want.
--Josh Marshall
Sen. Roberts (R) of Kansas, a bamboozler on Niger uranium, now says he has doubts about using the nuclear option to end judicial filibusters.
--Josh Marshall
